Sommery Round Rock TX LLC v. Sommery Lot 2 LP
| Sommery Round Rock TX LLC |
| Sommery Lot 2 LP |
| 2:2023cv08522 |
| November 16, 2023 |
| US District Court for the Eastern District of New York |
| Nusrat Jahan Choudhury |
| Lee G Dunst |
| Nina R Morrison |
| Contract: Other |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| None |
Docket Report
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| MINUTE ENTRY. Pre-motion conference held on Tuesday, December 19, 2023 at 2:00 PM via Zoom before Judge Nusrat J. Choudhury on the parties' correspondence concerning the parties' motion to consolidate and Defendants' anticipated 12(b) motions. Ethan Kobre appeared for Plaintiffs in both actions. Stephen J. Riccardulli appeared for Defendants in both actions. The Court reviewed the history of both Live Brio Apartments TX LLC v. 100 Dessau LP, No. 2:23-cv-8523-NJC-JSL and Sommery Round Rock TX LLC v. Sommery Lot 2 LP, No. 2:23-cv-8522-NJC-LGD and issues raised in the parties' filings. The Court heard the parties' arguments on whether the Court should consolidate the cases. The Court DENIED the motion to consolidate. The Court also heard argument on Defendants' anticipated 12(b) motions to dismiss for lack of personal jurisdiction. Defendants indicated that they anticipate moving to dismiss both cases on similar grounds. The Court set the following briefing schedule on Defendants' anticipated motions to dismiss in each case: Defendants shall serve any motion to dismiss the Amended Complaint in each matter by January 23, 2024; Plaintiffs shall serve their opposition by February 23, 2024; and Defendants shall serve and file any reply by March 15, 2024. The parties are directed to consult and comply with the Court's Individual Rules, including the Court's recommended bundling practice. See Individual Rule 5.2. (ASB) |
| Filing 10 AMENDED COMPLAINT against Sommery Lot 2 LP, filed by Sommery Round Rock TX LLC. (Kobre, Ethan) |
Due to a change in the Court's calendar, the pre-motion conference previously scheduled for December 13, 2023 at 2:00 PM will be held on December 19, 2023 at 2:00 PM via Zoom. The Court will provide a Zoom invitation closer to the conference date. This Zoom conference will be a public proceeding; nonparties are welcome to attend via telephone. To receive a telephone invitation, nonparties may contact Judge Choudhury's Chambers at (631) 712-5660. All parties must be prepared to address the motion to consolidate. See Individual Rule 4.1. Counsel should note that, in appropriate cases, the pre-motion letter as well as the response, along with counsels' arguments at the pre-motion conference, may be construed, at the discretion of the Court, as the motion itself. Arguments not raised in the pre-motion letters or during the pre-motion conference shall be deemed waived. See In re Best Payphones, Inc., 450 F. App'x 8, 15 (2d Cir. 2011). Please review the Court's Individual Practice Rules prior to the conference. The parties and other attendees to the conference are also reminded that the recording of any proceeding of the Court, including this conference, is prohibited under Local Rule 1.8. Ordered by Judge Nusrat J. Choudhury on 12/11/2023. (ASB)
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ORDER. The Court has reviewed parties' correspondence concerning defendant's anticipated motion to dismiss, ECF No. #4 , and request for a pre-motion conference, ECF No. #7 , and finds that a conference concerning the anticipated motion to dismiss is not necessary at this time. Plaintiff shall file an amended complaint by December 19, 2023. It is unlikely there will be any further opportunity to amend. If plaintiff does not file an amended complaint, plaintiff shall serve defendant with any opposition to the motion to dismiss by December 19, 2023. Defendant shall serve plaintiff with any reply by January 19, 2024. The parties must consult and comply with the Court's Individual Rules, including the Court's recommended bundling practice. See Individual Rule 5.2.6. Consequently, all briefing shall be filed with the court no later than January 19, 2024. The parties must consult and comply with the Court's Individual Rules concerning the provision of any courtesy copy to chambers after the motion is fully briefed. Should the plaintiff choose to amend, defendant shall file a letter requesting a pre-motion conference in advance of filing any motion dismiss in accordance with this Court's Individual Rule 5.1. Ordered by Judge Nusrat J. Choudhury on 12/11/2023. (ASB)
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ORDER granting ECF No. #7 Motion for Pre-Motion Conference. The Court will hold the pre-motion conference on the motion to consolidate Live Brio Apartments TX LLC v. 100 Dessau LP, No. 2:23-cv-8523-NJC-JSL and Sommery Round Rock TX LLC v. Sommery Lot 2 LP, No. 2:23-cv-8522-NRM-LGD, ECF No. #7 on December 13, 2023 at 2:00 PM via Zoom. The Court will provide a Zoom invitation closer to the conference date. This Zoom conference will be a public proceeding; nonparties are welcome to attend via telephone. To receive a telephone invitation, nonparties may contact Judge Choudhury's Chambers at (631) 712-5660. All parties must be prepared to address the motion to consolidate. See Individual Rule 4.1. Counsel should note that, in appropriate cases, the pre-motion letter as well as the response, along with counsels' arguments at the pre-motion conference, may be construed, at the discretion of the Court, as the motion itself. Arguments not raised in the pre-motion letters or during the pre-motion conference shall be deemed waived. See In re Best Payphones, Inc., 450 F. App'x 8, 15 (2d Cir. 2011). Please review the Court's Individual Practice Rules prior to the conference. The parties and other attendees to the conference are also reminded that the recording of any proceeding of the Court, including this conference, is prohibited under Local Rule 1.8. Ordered by Judge Nusrat J. Choudhury on 12/9/2023. (ASB)
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ORDER. The Court has reviewed the response of the plaintiffs and defendants in Live Brio Apartments TX LLC v. 100 Dessau LP, No. 2:23-cv-8523-NJC-JSL and Sommery Round Rock TX LLC v. Sommery Lot 2 LP, No. 2:23-cv-8522-NRM-LGD concerning defendants' removal of each case to this Court, the basis for this Court's jurisdiction over each matter, and defendants' request to consolidate the actions or, in the alternative, have them both proceed before the same judge in this District. The Court makes the following findings:1) The Court has jurisdiction over Live Brio Apartments TX LLC v. 100 Dessau LP, No. 2:23-cv-8523-NJC-JS pursuant to 28 U.S.C. Section 1332(a). "[T]he citizenship of a limited liability company is determined by the citizenship of each of its members." Carter v. HealthPort Techs., LLC, 822 F.3d 47, 60 (2d Cir. 2016); see also Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 52 (2d Cir. 2000)("for purposes of diversity jurisdiction, limited partnerships have the citizenship of each of its general and limited partners" (citing Carden v. Arkoma Assocs., 494 U.S. 185, 19596 (1990)). Plaintiffs are two New York limited liability companies with their principal place of business in Nassau County, New York. Its members are three individuals, Marc Fried, Mitchell Hammer, and Baruch Glaubach, all of whom are New York residents. ECF No. #9 . Defendant 100 Dessau LP is a limited partnership formed in Texas whose partners are: (1) Olympic Crossing GP LLC, a Texas limited liability company whose members are all citizens of Texas; (2) OC Developer Equity LLC, a Texas limited liability company whose members are all citizens of Texas; and (3) Grand Pines OC, Ltd., a British Virgin Islands limited company whose members are all foreign nationals domiciled in Hong Kong. ECF No. #8 The amount in controversy is over $100,000 which exceeds the $75,000 requirement. Therefore, because all parties are diverse and the amount in controversy is met, the Court has jurisdiction over this matter. 2) The Court has jurisdiction over Sommery Round Rock TX LLC v. Sommery Lot 2 LP, No. 2:23-cv-8522-NRM-LGD pursuant to 28 U.S.C. Section 1332(a). Plaintiffs are two New York limited liability companies with their principal place of business in Nassau County, New York. Its members are three individuals, Marc Fried, Mitchell Hammer, and Baruch Glaubach, all of whom are New York residents. ECF No. #9 . Defendant Sommery Lot 2 LP is a limited partnership formed in Texas whose partners are: (1) Sommery Townhomes GP LLC, a Texas limited liability company whose members are all citizens of Texas; (2) Sommery Townhomes LP, a Texas limited partnership whose partners are all citizens of Texas; (3) Round Rock 15 LLC, a Texas limited liability company whose members are all citizens of Texas, and (4) Sommery Holdings LLC, a Texas limited liability company whose members are all citizens of Texas. ECF No. #8 . The amount in controversy is over $100,000 which exceeds the $75,000 requirement. Under the same law cited above, because all parties are diverse and the amount in controversy is met, the Court has jurisdiction over this matter.3) The parties in both cases agree that it will foster judicial economy for the same judge in the U.S. District Court for the Eastern District of New York to handle both cases because the facts are both related to a substantially similar real estate breach of contract. "The two cases involve the same underlying parties (although acting through different named entities), the same witnesses, similar evidence, and the same legal and factual issues." ECF No. #9 .4) The Court therefore grants the motion to consolidate, to the extent that both cases will be handled by Judge Nusrat J. Choudhury. At this time, the Court does not order the cases to be formally consolidated into a single matter.5) The Court GRANTS the Letter Motion for a pre-motion conference to discuss the motion to consolidate both cases into a single matter, ECF No. #7 . The date and time for the conference will follow by separate order.Ordered by Judge Nusrat J. Choudhury on 12/9/2023. (ASB)
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ORDER REASSIGNING CASE. Case reassigned to Judge Nusrat Jahan Choudhury (as related to 22-cv-8523)for all further proceedings. Judge Nina R. Morrison no longer assigned to case Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such.Ordered by Chief Judge Margo K. Brodie on 12/7/2023. (KD)
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| Filing 9 Letter Responding to November 27, 2023 Docket Text Order regarding diversity jurisdiction, consolidation, and proposed briefing schedule by Sommery Round Rock TX LLC (Kobre, Ethan) |
| Filing 8 Letter re Your Honors' November 27, 2023 Orders directing, among other things, Defendants to file letters on the dockets in both causes identifying Defendants' members and their residency, by Sommery Lot 2 LP (Riccardulli, Stephen) |
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ORDER. Defendant's notice of removal, ECF No. #1 , alleges that this Court has diversity subject matter jurisdiction under 28 U.S.C. 1332. The allegations regarding the citizenship of plaintiff Sommery Round Rock TX LLC are insufficient. Plaintiff is an LLC and "the citizenship of a limited liability company is determined by the citizenship of each of its members." Carter v. HealthPort Techs., LLC, 822 F.3d 47, 60 (2d Cir. 2016). In its notice of removal, defendant identifies the members of the plaintiff LLC and their residency "upon and information and belief." ECF No. #1 at 2. Defendant's allegations made "upon information and belief" are insufficient to indicate the LLC plaintiff's citizenship for purposes of establishing diversity. See Snyder Corp. v. Fitness Ridge Worldwide, LLC, 2018 U.S. Dist. LEXIS 47514 at *5 (W.D.N.Y. 2018) (establishment of diversity requires affirmative statements of the identity and citizenship of all parties and the members thereof: conclusory statements upon information and belief are insufficient); see also Enteado v. Hi-Power Cycles, LLC, 2016 U.S. Dist. LEXIS 28880 at *2 (D.N.J. 2016) (allegations of more than one principal place of business for a corporation, and/or allegations of diverse citizenship made upon information and belief, are insufficient to establish diversity jurisdiction). Accordingly, in order to determine whether federal subject matter jurisdiction exists, plaintiff and defendant are hereby directed to file a letter identifying the members of the LLC plaintiff and the partners of the LP defendant and their residency on or before December 1, 2023. See Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 52 (2d Cir. 2000) ("for purposes of diversity jurisdiction, limited partnerships have the citizenship of each of its general and limited partners" (citing Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990)).The Court has reviewed defendant's letter requesting a pre-motion conference to consolidate this action with Live Brio Apartments TX LLC v. 100 Dessau LP, No. 2:23-cv-8523-NJC-SIL and to dismiss both cases for lack of personal jurisdiction, ECF No. #7 . Plaintiff is directed to file a response to this letter by December 1, 2023. The parties in this action are directed to file their submissions on the dockets for both Live Brio Apartments TX LLC v. 100 Dessau LP, No. 2:23-cv-8523-NJC-SIL and Sommery Round Rock TX LLC v. Sommery Lot 2 LP, No. 2:23-cv-8522-NRM-LGD. Ordered by Judge Nina R. Morrison on 11/28/2023. (AD)
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| Filing 7 Letter MOTION for pre motion conference to discuss the consolidation and motions to dismiss, by Sommery Lot 2 LP. (Riccardulli, Stephen) |
| Filing 6 MEMORANDUM in Support re #4 MOTION to Dismiss for Lack of Jurisdiction filed by Sommery Lot 2 LP. (Riccardulli, Stephen) |
| Filing 5 AFFIDAVIT/DECLARATION in Support re #4 MOTION to Dismiss for Lack of Jurisdiction filed by Sommery Lot 2 LP. (Riccardulli, Stephen) |
| Filing 4 MOTION to Dismiss for Lack of Jurisdiction by Sommery Lot 2 LP. (Riccardulli, Stephen) |
| Filing 3 Clerk's Notice Re: Consent. A United States Magistrate Judge has been assigned to this case and is available to conduct all proceedings. In accordance with Rule 73 of the Federal Rules of Civil Procedure, Local Rule 73.1, the parties are notified that if all parties consent, the assigned Magistrate Judge is available to conduct all proceedings in this action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to this Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. Any party may withhold its consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent.The form may also be accessed at the following link: #https://img.nyed.uscourts.gov/files/forms/MJConsentForm.pdf (LJ) |
| Filing 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
| Filing 1 NOTICE OF REMOVAL by Sommery Lot 2 LP from Supreme Court, County of Nassau, case number 616630/2023. Was the Disclosure Statement on Civil Cover Sheet completed -No ( Filing fee $ 402 receipt number ANYEDC-17291271) (Attachments: #1 Exhibit A - Summons and Complaint in the state court action, #2 Civil Cover Sheet) (Riccardulli, Stephen) Modified on 11/16/2023 (LJ). |
| Case Assigned to Judge Nina R. Morrison and Magistrate Judge Lee G. Dunst. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (LJ) |
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| Plaintiff: Sommery Round Rock TX LLC | |
| Represented By: | Ethan Allen Kobre |
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| Defendant: Sommery Lot 2 LP | |
| Represented By: | Stephen Joseph Riccardulli |
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